IN THE HIGH COURT OF KERALA AT ERNAKULAM
MACA.No. 2459 of 2008()
1. MR.JOSE.P.X,S/O.XAVIER, POOTHULLY HOUSE,
... Petitioner
Vs
1. THE PROPRIETOR, VITHAYATHIL AGENCIES,
... Respondent
2. BABURAJ, S/O.DINESAN, NAYAPPALLATHU
3. THE ORIENTAL INSURANCE CO.LTD, M.G.ROAD,
For Petitioner :SRI.K.JANARDHANAN
For Respondent :SRI.P.V.JYOTHI PRASAD
The Hon'ble MR. Justice A.K.BASHEER
The Hon'ble MR. Justice P.Q.BARKATH ALI
Dated :28/05/2010
O R D E R
A.K.BASHEER & P.Q.BARKATH ALI, JJ.
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M.A.C.A.No.2459 OF 2008
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Dated this the 28th day of May, 2010
JUDGMENT
Barkath Ali, J.
In this appeal under Section 173 of Motor Vehicles Act, the
claimant in O.P.(MV)No.3425/2001 of Motor Accidents Claims
Tribunal, Ernakulam challenges the judgment and award of the
Tribunal dated February 16, 2008 awarding a compensation of
Rs. 30,200/- for the loss caused to him on account of the injuries
sustained in a motor accident.
2. The facts leading to this appeal in brief are these :
Claimant was aged 21 at the time of the accident and used to earn
Rs. 2,000/- per month, according to him. On June 2, 2001 at about
10.30 a.m., the claimant was pillion riding on the motor cycle bearing
Reg.No.KL-7/X 3449 ridden by the second respondent along Edappally
Market Road. At that time, due to the rash and negligent riding of the
motor cycle by second respondent, it hit on an electric post on the side
of the road while overtaking an autorickshaw. Claimant sustained
serious injuries. According to the claimant, accident occurred due to
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the rash and negligent riding of the offending motor cycle by second
respondent. First respondent as the owner, second respondent as the
rider and third respondent as the insurer of the offending motor cycle
are jointly and severally liable to pay compensation to the claimant.
Claimant claimed a compensation of Rs. 1,37,000/-.
3. Respondents 1 and 2, the owner and rider of the offending
motor cycle remained absent and were set ex parte by the Tribunal.
The third respondent the insurer of the offending motor cycle filed a
written statement admitting the policy and further contended that the
claimant himself was riding the offending motor cycle.
4. PW1 was examined and Exts.A1 to A7 were marked on the
side of the claimant before the Tribunal. On the side of the contesting
third respondent, Ext.B1 was marked. The Tribunal on an appreciation
of evidence found that the accident occurred due to the rash and
negligent riding of the offending offending motor cycle by second
respondent and awarded a compensation of Rs. 30,200/- with interest
@ 7.5% per annum from the date of petition till realisation and
proportionate cost. The claimant has now come up in appeal
challenging the quantum of compensation awarded by the Tribunal.
MACA.No.2459/2008 3
5. Heard the counsel for the appellant/claimant and the
counsel for the Insurance Company.
6. The accident is not disputed. The finding of the Tribunal
that the accident occurred due to the negligence on the part of the
second respondent is not challenged in this appeal. It is also admitted
by the Insurance Company that as the policy is a comprehensive policy,
third respondent is bound to indemnify the owner. Therefore, the only
question which arises for consideration is whether the claimant is
entitled to any enhanced compensation.
7. The claimant sustained the following injuries as revealed
from Ext.A2, the copy of the wound certificate and Ext.A6, the
treatment certificate issued from Specialists’ Hospital, Ernakulam.
Loss of nail, nail bed and soft tissue from tip
of left ring finger, crush injury and amputation of
left ring finger at the base of nail and fracture tip of
terminal phalanx of left ring finger.
8. The Tribunal awarded a total compensation of Rs.30,200/-.
The break up of the compensation awarded is as under :
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Transportation, hospitalisation,attendant
expenses,extra nourishment & damage
to clothings – Rs. 1,000/-
Medical expenses - Rs. 9,200/-
Loss of earnings - Rs. 2,000/-
Pain and suffering - Rs.10,000/-
Discomfort & inconveniences - Rs. 8,000/-
9. Counsel for the claimant pointed out that no compensation
was awarded for the disability caused, for loss of amenities and
enjoyment of life and for loss of future prospects in his profession.
10. There is force in the above contention. The Tribunal did
not award any compensation for the disability caused. Claimant as
PW1 testified that he was aged 27 at the time of the accident and from
his profession as a driver, he used to earn Rs. 2,000/- per month. The
Tribunal has accepted the same. No certificate of disability is produced
by the claimant before the Tribunal. But the tip of the left ring finger
was amputated, which we feel, will affect his profession as a driver.
Taking into consideration these facts, we feel that for the disability
caused and for future prospects in his profession, a compensation of
Rs. 25,000/- would be reasonable. For the loss of amenities and
enjoyment of life, in our view, a compensation of Rs. 10,000/- would
MACA.No.2459/2008 5
be just and proper.
11. The Tribunal took the monthly income of the claimant as
Rs. 2,000/- and awarded loss of earning for one month. Having regard
to the fact that claimant was a driver, we feel that his monthly income
can be reasonably fixed at Rs. 3,000/-. Therefore, towards loss of
earning, he is entitled to a compensation of Rs. 3,000/-. As regards the
compensation awarded under other heads, we find the same to be
reasonable and therefore are not disturbing the same.
12. In the result, the claimant is entitled to an additional
compensation of Rs. 36,000/-. He is entitled to interest @ 7.5% per
annum from the date of petition till realisation and proportionate cost.
The third respondent being the insurer of the offending vehicle shall
deposit the amount before the Tribunal within two months from the
date of receipt of a copy of this judgment. The award of the Tribunal
is modified to the above extent.
The Appeal is disposed of as found above.
A.K.BASHEER, JUDGE
P.Q.BARKATH ALI, JUDGE
sv.
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